[Area 2] [CCWG-Accountability] Regarding how bylaw changes are made
Avri Doria
avri at acm.org
Sun Jan 4 05:55:45 UTC 2015
Hi,
As I am addressed directly, I will attempt to respond
> What is that magic term "community» covers?
> Does it includes or embrace the entire multistakeholders?
I do not believe it is a magic term, but rather the focus of our concern
- we participate in efforts such as this to our best ability for the
interests of the global stakeholder community to the best of our
understanding. In this case, when I use the term, I use it to refer to
all of ICANN's stakeholders. For me that includes primarily those who
are involved in ICANN's various Advisory committees and Supporting
Organizations (ACSO) representing various stakeholder groupings. But it
also includes those to whom we are constantly making outreach and to
those who take the time and effort to respond with comments to the
various request for comments that ICANN publishes. One of the
interesting attributes of ICANN that I have noticed though, is that it
takes very little for an 'outsider' who gets involved in an ICANN, to
become an 'insider' who contributes as much as she likes.
So when I say that ICANN must be accountable to its community, that it
what I mean.
> As it was discussed at several occasion, there is a defacto agreement
> that ,generally speaking multistakeholder composed of
>
> Civil Society
>
> Private Sector,
>
> Technical Community including academics
>
> Governments
>
I, for one, do not believe the government determined breakdown of
stakeholders in the Tunis Agenda (TA) needs to be the guiding
stakeholder definition for ICANN or a de facto definition for the
Internet - though it is a convenient way of grouping in some cases.
Certainly all of these TA categories of stakeholder can be found among
the ICANN community, but the ACSO are not subdivided in the way that the
Tunis Agenda, as mandated unilaterally by a group of nation states,
groups them. While that is the division seems to be the one we must use
in any intergovernmental attempt at a multistakeholder organization, it
is by no means the only way that stakeholders can be defined in a
multistakeholder entity in the Internet ecosystem.
It is also important to understand that while ICANN is a
multistakeholder organization in its own construction, it is but one
stakeholder in the larger Internet ecosystem.
> Do we treat the comments with equal footing. I know that your are
> defending the equal rights of the constituency
>
> In CSTD you defended that equality of rights for more than 2 hours and
> finally succeeded to win
>
I am not aware that I ever prevailed in any discussion in CSTD, afier
all I was just a civil society participant in an intergovernmental
system. Any temporary advantage that may have been gained due to my
multi-houred discussions in the WG on Enhanced Cooperation (WGEC)
meetings evaporated immediately once the intergovernmental member states
got together at the CSTD to make their decisions.
As for me personally, and as one who strongly supports the ATRT process
as one basis for ICANN accountability, yes, I argue for equal footing
in all discussions and considerations as the way to find broad
consensus. And while I accept that the full multistakeholder complement
is not always the decision maker*, I always believe that those who make
decisions are accountable to the full community of stakeholders. And
while I sometimes agree it is wise to give greater value to the comments
of established groupings than to those of individuals, what I think
counts most is the usefulness of the ideas and the contribution they
make to enhancing the accountability of ICANN. If an individual were to
have offered an answer to our quest that all could accept, what would it
matter who it came from or that it came from an individual who belonged
to stakeholder group A, B and/or C.
As for the representative nature of the CCWG, all of the stakeholder
groupings and any interested individual has the opportunity to represent
their group, themselves, and/or the best interests of the Internet as
they understand it from their perspective, in this effort.
thanks
avri
* in this case for better or worse the deciders are the Board for the
bylaws changes and ultimately NTIA for the 2 track solution. Though both
remain accountable to the global Internet community, of which we are a
voice.
On 02-Jan-15 14:20, Kavouss Arasteh wrote:
> Dear Avri,
> Dear All.
>
> Thank you very much for your comments
>
> I have one question which continued to bother me as everyone refers to
> «community"
>
> What is that magic term "community» covers?
>
> Does it includes or embrace the entire multistakeholders?
>
> As it was discussed at several occasion, there is a defacto agreement
> that ,generally speaking multistakeholder composed of
>
> Civil Society
>
> Private Sector,
>
> Technical Community including academics
>
> Governments
>
> In your views and the views other those who repeatedly refer to
> "Community" do they mean; Global Multistakeholer" as described above.
>
> If that is the case how the " community" fits in that overall
> description.
>
> When there are comments received from «community" have we checked
> whether all four categories of multistakeholder have commented?
>
> Do we treat the comments with equal footing. I know that your are
> defending the equal rights of the constituency
>
> In CSTD you defended that equality of rights for more than 2 hours and
> finally succeeded to win
>
> How we decide whether comments from a limited number of people (
> mostly those who comments on everything are representing which of
> those four categories of community
>
> How we have taken into account whether the number of comments is
> representative of the entire multistakeholder .
>
> I give you an example, for the issue of ICANN accountability at one
> point of time ICANN mentioned based on 17 comments it modified the
> approach previously submitted.
>
> Did we checked whether all four categories of Multistakeholder commented ?
>
> Have we checked whether any Government commented or as they are
> frustrated they did not?
> What footing criteria were used to conclude on the representativeness
> of the comments?
>
> Did we consider comment made on behalf on a big community with equal
> footing with comments received from an individual who spoke on behalf
> of herself or himself?
>
> We need to be careful when we refer to the term “ community”
>
> Until the time that the constituents of Global Multistakeholder
> Community is not clearly specified and their footing are not agreed
> ,it is difficult to associate any serious value to the comment
> received from a limited number of permanent commenting people which
> may not representing the community as such.
>
> Best Regards
>
> Your friend
>
> Kavouss
>
>
>
>
>
> 2015-01-02 16:42 GMT+01:00 Paul Rosenzweig
> <paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>>:
>
> Dear Kavouss
>
>
>
> I reply to you privately simply because I think we have pretty
> much exhausted our friends on the listserve. I found your answer
> fascinating. And I think, in the end, the difference lies in the
> perspectives of our different worlds. Where I work (here in
> Washington DC) if I am going to have a fight with someone, it is
> often beneficial to create a public perception that I am being
> reasonable and the other fellow is the one who is being
> unreasonable – and having the Board say “no” to my question would
> help me in that regard.
>
>
>
> Best wishes
>
> Paul
>
>
>
>
>
> ***NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 ****
>
> 509 C St. NE
>
> Washington, DC 20002
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweigesq at redbranchconsulting.com>
>
> O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660>
>
> M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650>
>
> Skype: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739> or
> paul.rosenzweig1066
>
> Link to my PGP Key
> <http://www.redbranchconsulting.com/index.php?option=com_content&view=article&id=19&Itemid=9>
>
>
>
> *From:*Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com
> <mailto:kavouss.arasteh at gmail.com>]
> *Sent:* Friday, January 2, 2015 9:10 AM
>
>
> *To:* Paul Rosenzweig
> *Cc:* Seun Ojedeji; <accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>>
> *Subject:* Re: [CCWG-Accountability] Regarding how bylaw changes
> are made
>
>
>
> Dear Paul,
>
> Dear All
>
> I am coming back to reply to your kind responses on which we have
> major agreement on the substance but different views on the
> approaches.
>
> Let me just clarify my points that I raised many times and no
> answer was give.
>
> Currently, there is constitutional and legal mechanism for ICANN
> accountability
>
> On the other hand, there are some sort of optional accountability
> ( in form of ATRT Recommendations and comments received from a
> limited number of people ( Public Comments )
>
> However, there is no mechanism at all to verify whether the
> responsibilities entrusted to the Board have been properly held or
> implemented.
>
> Moreover, there are not any constitutional (legally adopted) by
> stakeholder accountability terms and conditions.
>
> We have bylaws crafted by board and under the Board authority to
> modify and or update
>
> In my view having more than 40 years of constitutional experience
> the Board is no more than an executive entity
>
> What they execute is AoC and Bylaws .The first one is designed to
> meet the NTIA requirement .The second one is a quasi-unilateral
> provisions crafted by Board and commented by a limited number of
> people ( public ) without knowing that whether or not that limited
> number of people commented represents the entire multistakeholders
> ( Civil Society, Private Sector, Technical Community including
> Academics and last but not leased Governments )
>
> There is no separation of authority between those who establish
> policy/ Multistakeholders or their legally designated or elected
> representatives with appropriate footing and those who implement
> policies ( ICANN) and in particular the policy itself ( modified
> version of AoC plus modified Bylaws ) Every thing is mixed.
>
> Currently ICANN is at least is responsible to NTIA for certain
> actions and responsible to UNKNOWN Public for certain other
> actions .Once the transition is done the entire responsibilities
> goes to that UNKNOWN Public without having any authority to
> scrutinize actions implemented and no authority to sanction those
> who did not implement the established policy
>
> Now CCWG is making every effort to clarify the situation .We are
> at the beginning of the process. In my view, that takes many
> months if not many years to do so .
>
> Now you and those supporting your approach consider that we need
> to ask the Board in an upfront approach what they believe
> implementable and what believe Un/ Non implementable
>
> Allow me dear Paul to describe the scenarios.
>
> We would wish to ask an entity whether or not that entity agrees
> that we a) limit its authority) designating or establishing a
> mechanism for overnighting their action and c) implement sanctions
> if they have not or will not perform their duties as prescribed
> by the Policy Terms and condition
>
> Now I am asking this simple question
>
> Do you know any one or any entity wants that a) ,b) and C)
> individually and or/ collectively be implemented in her or his regard?
>
> In this world that we are living no one wants to be limited in
> authority nor being held more responsible than she or he is
> currently responsible and more importantly no one which is not
> under any sanctioning rules to be under that rules
>
> If the answer is yes, then we should not raise any question to
> them at all.
>
> Moreover, does the legislating authority ask the executing
> authority which kind of authority sphere or responsibility domain
> it wishes to perform its function?
>
> The answer is no
>
> The legislator establishes the laws and rules and the executing
> entity MUST implement that Law or Rule.
>
> However, in devising those laws and Rules there is continuing
> dialogues between the two CCWG and ICANN Board.
>
> In summary, in view of the above, we should not raise any such
> questions to the Board but continue to exchange views between the
> Board and CCWG ,as appropriate
>
> Kavouss
>
>
>
>
>
> 2015-01-02 9:52 GMT+01:00 Kavouss Arasteh
> <kavouss.arasteh at gmail.com <mailto:kavouss.arasteh at gmail.com>>:
>
> Dear Paul,
>
> Thank you very much in deed to kindly answering my question.
>
> Yes it helps ( your clarification) .
>
> I will revert to you in few hours
>
> Thanks again for your kind answer and analysis
>
> Kavouss
>
>
>
> Sent from my iPhone
>
>
> On 2 Jan 2015, at 00:08, Paul Rosenzweig
> <paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>> wrote:
>
> Dear Kavouss
>
>
>
> Thank you for this question which is a very sensible one.
> Let me try to clarify what I am trying to accomplish by my
> proposal.
>
>
>
> I am a complete and firm support of Board accountability
> to the Community. That is 100% clear and I think you and
> I are in firm agreement on that.
>
>
>
> I may, however, not be clear about my method and process.
> From my perspective the strongest accountability would be
> with a clear Bylaw limitation on ICANN functionality and a
> provision for an outside arbiter. Both of those changes
> would require Board approval. I am not trying to
> subordinate the CCWG to the Board. Far from it – what I
> am trying to do is find out as early in the process
> whether the Board is going to be willing to agree to
> subordinate itself to the Community through those
> mechanisms.
>
>
>
> So, I think the place where you may misunderstand me is at
> the very end of your note – where you say “why you want to
> limit CCWG to just follow those areas of accountability
> that Board wishes?” I think you are assuming that if the
> Board said “no” to the questions I was asking that my
> reaction would be to say “oh … oh well. That is OK. If
> the Board won’t agree, we can’t do it.”
>
>
>
> My real reaction, in practice, would be exactly the
> opposite – I would urge the Community to dig in for an
> extended discussion with the Board and use my limited
> powers of persuasion to rally the community to demand that
> the Board changed its mind. J And I would probably urge
> CCWG to recommend those same things anyway – but at least
> we would do that knowing what was going to happen.
>
>
>
> Does that help?
>
> Regards
>
> Paul
>
>
>
> ***NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 ****
>
> 509 C St. NE
>
> Washington, DC 20002
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweigesq at redbranchconsulting.com>
>
> O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660>
>
> M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650>
>
> Skype: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739>
> or paul.rosenzweig1066
>
> Link to my PGP Key
> <http://www.redbranchconsulting.com/index.php?option=com_content&view=article&id=19&Itemid=9>
>
>
>
> *From:*Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com]
> *Sent:* Thursday, January 1, 2015 4:39 PM
> *To:* Paul Rosenzweig
> *Cc:* Seun Ojedeji;
> accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>
> *Subject:* Re: [CCWG-Accountability] Regarding how bylaw
> changes are made
>
>
>
> Dear Paul,
>
> The way you commenting on the matter could have two
> different interprétations or leave two different impressions:
>
> A) You are a firm supporter of accountabilty process when
> we note your comments about Mathieu
>
> B) You wish to raise the question Under discussion to the
> Board asking what they wish to see from CCWG and what they
> do not see from CCWG .The latter interpretation ,in my
> view, seems to be subordinating CCWG to the Board in the
> sense that we just study, elaborate and recoomend those
> area of accountability that Board is comfortable with but
> not CCWG address the full picture, objectives,
> requiremnets of accountability.
>
> Pls find a coherence between interpretation A) and
> interpretation B) .In order words if you are really in
> favour of addressing the accountability in a fullflege
> scope why you want to limit CCWG to just follow those
> areas of accountability that Board wishes?
> Thank you very much to clarify your position.
>
> Best Regards
>
> Kavouss
>
>
>
> 2015-01-01 21:35 GMT+01:00 Paul Rosenzweig
> <paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>>:
>
> Bruce is a wonderful man. But we don’t need his
> opinion, we need a formal commitment from the Board.
> That’s why we need to ask the question in an official
> manner.
>
>
>
> Indeed, I would posit that if the accountability
> working group tasked with ensuring accountability by
> ICANN is reluctant to even ask the Board a question
> then the communities capacity to actually reign in
> Board excess when/if it perceives such would be very
> limited. If we are so unwilling to even ask a
> question, will we be willing to tell the Board “no.”
>
>
>
> In any event, if we choose not to ask this question,
> then the scope of WS1 has just expanded to essentially
> include almost all oversight mechanisms we might
> conceivably want – which would, I think, be the wrong
> result.
>
>
>
> Warm regards
>
> Paul
>
>
>
> ***NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 ****
>
> 509 C St. NE
>
> Washington, DC 20002
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweigesq at redbranchconsulting.com>
>
> O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660>
>
> M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650>
>
> Skype: +1 (202) 738-1739
> <tel:%2B1%20%28202%29%20738-1739> or paul.rosenzweig1066
>
> Link to my PGP Key
> <http://www.redbranchconsulting.com/index.php?option=com_content&view=article&id=19&Itemid=9>
>
>
>
> *From:*Kavouss Arasteh
> [mailto:kavouss.arasteh at gmail.com
> <mailto:kavouss.arasteh at gmail.com>]
> *Sent:* Thursday, January 1, 2015 10:09 AM
> *To:* Seun Ojedeji
> *Cc:* accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>
> *Subject:* Re: [CCWG-Accountability] Regarding how
> bylaw changes are made
>
>
>
> Dear All
>
> I agree to the term that no one should dictate the CCWG.
>
> Still why there is a need that we raise any such
> question to the Board,
>
> Bruce is quite active and requested to continue the
> Liaison
>
> Kavouss
>
>
>
>
>
> Sent from my iPhone
>
>
> On 1 Jan 2015, at 15:28, Seun Ojedeji
> <seun.ojedeji at gmail.com
> <mailto:seun.ojedeji at gmail.com>> wrote:
>
> Hi Bruce,
>
> Thanks for this information, I will then suggest
> that this WG determine if those steps will indeed
> be appropriate for us especially since WS1 is more
> of a perquisite to transition. One would expect
> some adjustments on timing and wording rights to
> be made in the process, also board voting rights
> in this particular process may need to be agreed
> upon. It will not be encouraging to have
> implementation stopped on the basis of no 2/3
> board majority....time utilization is an important
> factor in all these. So the earlier we involve
> board (without having them dictate for us) the better.
>
> Regards
> sent from Google nexus 4
> kindly excuse brevity and typos.
>
> On 1 Jan 2015 04:55, "Bruce Tonkin"
> <Bruce.Tonkin at melbourneit.com.au
> <mailto:Bruce.Tonkin at melbourneit.com.au>> wrote:
>
> Hello Seun,
>
> >> I think writing to board to know how it
> will treat the WG outcome especially when some
> of it's implementations will require by-law
> modifications that further involve the ICANN
> community in decision making process may be
> useful.
>
> In terms of the process for making bylaws
> changes, changes have previously been made to
> accommodate recommendations from the review
> teams associated with the work of the
> Accountability and Transparency Review Teams
> (ATRT)
> https://www.icann.org/resources/pages/atrt-2012-02-25-en
> .
>
> Any archive of all previous versions of the
> bylaws is available here:
> https://www.icann.org/resources/pages/archive-bc-2012-02-25-en
>
> Based on our current practice I would expect
> the process to be as follows:
>
> - Board accepts recommendations from the CCWG
>
> - General Counsel's office prepares specific
> text to change in the bylaws
>
> - proposed bylaws changes are put out for
> public comment (45 days)
>
> - Board then votes on the bylaws amendments -
> a 2/3 majority of the Board is required to
> make a bylaw change
>
> If there is significant community comments
> against the proposed bylaws language - then a
> new draft of the bylaws would be put out for
> public comment that is consistent with the
> recommendations from the CCWG.
>
> Regards,
> Bruce Tonkin
>
>
>
>
>
>
>
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